Chief Justice Christopher Hinkson spoke up yesterday in defence of Gray in an interview with Global News. He reportedly didn’t think evidence brought before the judge in a 2016 custody trial could have suggested the father was likely to commit the crime — if in fact he did. The criticism of the judge that followed the tragedy is unfair in his opinion.

Hinkson also mentioned that Justice Gray was not responsible for assessing Berry’s fitness to visit with his girls, but instead to figure out the logistical issues around shared custody.

While the Chief Justice declined further comment, Oak Bay News reached out to Family Law Mediator and Arbitrator, Trudi Brown. Brown has not represented either party, but is familiar with the case.

“I think the Chief was saying all of the right things — these are not easy decisions and there was no evidence that (Berry) was a danger,” said Brown. “I can tell you that it appears — from my read of the court decision in May 2017 — that hindsight is playing a big role in the responses.”

Custody decisions are perhaps the hardest for judges, according to Brown, as they are faced with evidence from both parties that conflicts. There are seldom third parties who can substantiate the allegations made by either side.

“It would appear that the father had some serious issues,” said Brown. “Which may have grown worse after the decision and long after the judge had seen him. He may have been able to hide those issues from the wife and other people.”

“In this case, the parties did all the right things to start — mediation, use of divorce coaches, and eventually reaching agreements. The mother had some serious concerns about the father’s care of the children, and those were aired at court, but she did not oppose him having the girls overnight, so long as it was not more than one night at a time so that she could monitor how the children were doing,” said Brown. “The father wanted week on, week off parenting and that was not granted by the court.”

On Christmas Day, Chloe and Aubrey were in the care of their father at his apartment on the corner of Beach Drive and Goodwin Street. The children were supposed to go home to their mother’s house on Christmas afternoon but didn’t arrive. Their mother, Sarah Cotton, contacted Oak Bay police who responded to Berry’s apartment and found the bodies of the two girls.

Andrew Berry was found in the apartment with them, suffering from what are believed to be self-inflicted injuries, and was taken to hospital. Berry was then arrested and charged upon release.

He has now secured counsel and will be appearing in court again on Feb.22.